Constitutional decree in Egypt gives Morsi sweeping powers

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Anti-Morsi protesters chant slogans in front of the Supreme Judicial Council building in Cairo, on 24 November 2012

REUTERS/Asmaa Waguih

UPDATE - 28 November 2012 - Mohamed Morsi's constitutional declaration has prompted widespread demonstrations across Egypt. A 15-year-old boy, Islam Masoud, died in the midst of violent clashes between opposition demonstrators and supporters of the Muslim Brotherhood in Damanhour. Some of Egypt's top judges have demanded that Morsi reverse the measure and called for peaceful demonstrations against the decree. (Based on ANHRI and EOHR reports)

(CIHRS/IFEX) - 24 November 2012 - The undersigned rights organizations announce their unequivocal rejection of the constitutional declaration issued by the president on 22 November and demand its immediate revocation. These organizations believe that the president has contravened the revolution's goals of democratization and exploited the expansive powers he granted to himself shortly after his election to arrogate unparalleled powers and immunize his decisions against judicial oversight, thus precluding the possibility of any challenges or opposition to them by legal and judicial means. In this way, the president appears to be seeking absolute powers that will allow no person or body to challenge his rule or contest his decisions.

By issuing this constitutional declaration, President Mohamed Morsi directly attacked the judicial branch, the rule of law, and indeed the very concept of the modern state. The president, who now possesses authorities beyond those enjoyed by any president or monarch in Egypt's modern history, has dealt a lethal blow to the Egyptian judiciary, thereby declaring the beginning of a new dictatorship in which it is not permitted to oppose the president, criticize his policies, or challenge his decisions. Although these acts were taken under the pretext of protecting the revolution and its goals, they portend a bleak future for human rights and liberties in Egypt.

The constitutional declaration, which came as a surprise to all, grants extraordinary powers to the president. It offers citizens a misleading preamble which celebrates the revolution and its goals of enshrining freedom and achieving democracy and social justice and claims that the presidency's objective is to eliminate corruption, purge state institutions, and achieve social justice. However, contrary to these initial statements, the articles of the declaration entrench tyranny and one-man rule, giving the president – in addition to the executive and legislative powers which he already held – the authority to interfere in the judiciary as well. The balance and separation of powers in Egypt has thereby been utterly demolished.

Through this declaration, the president severely debilitated judicial independence, obstructed litigation, blocked the application of the laws on the Supreme Constitutional Court (SCC) and on the judiciary, destroyed the authoritative nature of court rulings, and paved the way for state institutions to refuse to implement court orders, which may well lead to the spread of chaos in the country and the collapse of the idea of the state based on institutions rather than individual leaders.

The president used the constitutional declaration to serve the interests of the Freedom of Justice Party (FJP), putting them above the welfare of society, and to circumvent impending rulings from the SCC on the constitutionality of the Shura Council and constituent assembly by immunizing these two institutions from any dissolution order issued by any judicial body. These actions undermine the rule of law and the pillars of justice and exploit presidential powers to protect the interests of a particular political group. This is further demonstrated by the fact that the president chose to give his speech on 23 November to an audience of his supporters in front of the presidential palace and to use strident, threatening language and affront his opponents, thus belying his promise to represent all Egyptians as president.

The undersigned organizations assert their severe concern, and indeed shock, over the issuance of such a declaration which undermines judicial independence and rule of law. We are further alarmed that it comes at a time when a group of the most prominent advocates of judicial independence occupy executive positions in the executive power. Indeed, the contents of the declaration infringe on the independence that judges have long demanded from the executive. Their demands have included making both citizens and rulers subject to the law, removing the president's authority to appoint the public prosecutor, and allowing for the public prosecutor to be instead appointed by the Supreme Judicial Council or selected by the president from a list of candidates presented by the judiciary.

Through broad language open to abusive interpretation, the constitutional declaration follows the same process of “tailoring” laws and constitutional provisions as was often done under the former regimes in Egypt. Article 6 gives President Morsi absolute powers to take “necessary measures and procedures” to confront what he deems to be threats to the revolution, the “life” of the nation, national unity, national safety, or the operation of state institutions. These prerogatives could be used to restrict liberties and undermine human rights, and they grant the executive the power to restrict citizens' rights to peaceful protest and labor strikes. In other words, the president has assumed the power to suppress all forms of political and social protest in the country, thus possessing another exceptional tool in addition to his authority to declare a state of emergency.

It is important to note that this article of the constitutional declaration was adapted from Article 74 of the 1971 constitution, yet it goes even further by omitting the stipulation that the president must issue a statement to the people and conduct a referendum within 60 days of declaring a state of emergency, as well as by eliminating a provision which prohibited the dissolution of the Peoples' Assembly even under such a state of emergency. The presence of these stipulations in the 1971 constitution effectively ensured that the president could not exercise emergency powers without obtaining the consent of the people in an official referendum and without the oversight of an elected parliament. However, Article 6 of the recent constitutional declaration thus lifts the restrictions on President Morsi which had previously limited even Mubarak's power to issue despotic measures and decrees.

Since his election, President Mohamed Morsi, like the Supreme Council of the Armed Forces before him, has disregarded the revolution's demands for security reform, the restructuring of the Interior Ministry, and an end to impunity for grave human rights abuses. Although the preamble of the constitutional declaration suggests that a decision has been made to purge state institutions, current policies indicate a lack of any such intention to restructure or purge any state institution.

The undersigned organizations are particularly alarmed by the continued disregard for demands for security reform, even as police forces continue to use excessive force to disperse the protests that erupted last week on Mohammed Mahmoud Street during the commemoration of the events which killed dozens and injured hundreds last year as a result of a brutal crackdown by security forces.

Despite the occurrence of additional deaths and injuries, the president's office has been completely silent on the subject. The undersigned organizations strongly condemn the continuation of policies that grant impunity for human rights violations and for the killing and maiming of demonstrators before, during, and after the revolution and currently taking place in Mohammed Mahmoud Street and the surrounding area. The recent constitutional declaration does not achieve justice or protect the revolution. Rather, it merely codifies policies of impunity and provides for the continued absence of a state based on institutions and governed by rule of the law.

Co-Signatories

Egyptian Initiative for Personal Rights
Hisham Mubarak Law Center
Egyptians Against Religious Discrimination
New Woman Foundation
Association for Freedom of Thought and Expression
Andalus Institute for Tolerance and Anti-Violence Studies
Appropriate Communications Techniques for Developments (ACT)
Arab Foundation for Civil Society and Human Rights Support
Arab Penal Reform Organization
Egyptian Association for Community Participation Enhancement
Egyptian Center for Social and Economic Rights
Egyptian Center for Women Rights
Egyptian Coalition for Children Rights
Egyptian Foundation for Advancement of the Childhood Conditions
Habi Center for Environmental Rights
Nazra for Feminist Studies
The Arab Center for the Independence of the Judiciary and the Legal Profession
The Human Rights Association for the Assistance of the Prisoners
United Group, Attorneys at law, legal researchers, and Human Rights Advocates
The Egyptian center for Women’s Rights

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